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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ferguson v. M'Culloch [1865] ScotLR 1_49 (22 November 1865)
URL: http://www.bailii.org/scot/cases/ScotCS/1865/01SLR0049.html
Cite as: [1865] ScotLR 1_49, [1865] SLR 1_49

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SCOTTISH_SLR_Court_of_Session

Page: 49↓

Court of Session Inner House Second Division.

1 SLR 49

Ferguson

v.

M'Culloch.

Headnote:

The grandfather and father of Hugh Ferguson have, and Hugh Ferguson, the heir of the latter, has, since his father's death, possessed a certain portion of ground, the possession extending for upwards of seventy years, on which houses were built and erections made. The ground was part of the estate of Bonhill, which belonged to the ancestors of Mr Smollett, and now belongs to himself. The plots of ground in the neighbourhood were let by Mr Smollett's ancestor on building leases for 99 years, and in the lease of an adjoining plot, that on which the present claim is founded is described as a lot of ground set to John Ferguson. A plan of the village of Alexandria, containing an entry in name of John Ferguson, a series of receipts for rent, and a formal lease dated, however, on the day that the Registration Court was held, constituted the written title of the appellant. The question in law was whether this was a sufficient one either under the 7th or 9th sections of 2d and 3d Will IV. c. 65.

 Judgment:

Lord Ormidale observed that the fact of the claimant's name being already on the register of voters rendered it incumbent upon the objector to prove either that he never had the requisite qualification to justify his being placed thereon, or that he had lost it. The question of the sufficiency of the title came to be one of evidence. It was impossible not to see from Emslie's case that in a question directly between landlord and tenant a very slender written title would be enough. He was of opinion that the identification of the ground in right of which the claimant was on the register was sufficient, and also that it was let in 1792 on a long lease, with other adjoining portions of ground. The plan he considered to be a landlord's plan; but he could give no effect to the document said to be a formal lease, and dated the very day on which the Registration Court was held. But he thought there was sufficient writ without it, and therefore was for reversing the judgment of the Sheriff.

Lord Kinloch concurred, but did not entirely reject the formal lease. Although clearly it would not be sufficient of itself, still, read in connection with the other documents referred to, it was not entirely to be laid out of sight.

 1865

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URL: http://www.bailii.org/scot/cases/ScotCS/1865/01SLR0049.html